Environmental Law News
July 2007
Published by the Environmental Law Section
of the State Bar of Wisconsin
Comments From the Immediate Past Chair
By Michael D. Flanagan, Foley & Lardner LLP
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Michael D. Flanagan
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This edition of the newsletter provides an update on the law regulating Wisconsin's wetlands in the wake of the U.S. Supreme Court's decisions in the Rapanos and Carabell cases.
The first article, by Edward B. Witte, Gonzalez Saggio & Harlan LLP, provides background on the federal jurisdictional issues presented in these cases, and analyzes how the Court resolved (or failed to resolve) those issues.
The second article, by Michael J. Cain, Staff Attorney of the Wisconsin Department of Natural Resources, evaluates whether the decisions will have a significant impact on Wisconsin's federal wetlands program.
The third article, by Tanya C. O'Neill, Foley & Lardner LLP, summarizes the Clean Water Act Jurisdictional Guidance issued on June 5, 2007 by the U.S. Environmental Protection Agency and the Army Corps of Engineers, a guidance intended to promote consistent jurisdictional determinations and permitting actions based upon application of the Rapanos opinion.
We are proud to distribute this issue, and are very grateful for the efforts of Ned Witte, Michael Cain and Tanya O'Neill.
Comments From the Chair
By Dennis M. Grzezinski, Law Office of Dennis M. Grzezinski
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Dennis M. Grzezinski
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As I begin my term as new chair of the Environmental Law Section, my first task is a most pleasant one - to thank my predecessor, Mike Flanagan, for his tireless service to the section, including his work for many years in coordinating our periodic CLE seminars and editing many of our newsletters, including this one. We all owe him our gratitude for these jobs well done!
Our section includes members with varied types of practices, whose clients' interests differ and often conflict. As a result, our bylaws have, from the start, mandated membership on the section board of members from all three segments of the environmental law community: those whose practice primarily represents the regulated community; those in government service; and those representing environmental organizations/public interest groups. Despite this diversity, or perhaps because of it, Environmental Law Section Board decision-making has been conducted by consensus. The section's activities have focused on providing CLE programs to our membership, on providing members with useful information and updates through our newsletters, and on providing support for educational programs and activities regarding the environment or environmental law, at Wisconsin's two law schools and occasionally at other organizations within the state. I welcome section members to participate in these activities by suggesting topics for CLE programs or newsletter articles; by volunteering to be CLE presenters or authors of articles; or by providing any other input to me, to the other officers, or to any board member.
The Murky World of Wetlands Regulation after Rapanos
By Edward B. Witte, Gonzalez Saggio & Harlan LLP
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Edward B. Witte
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Property owners, developers, environmental advocates and government regulators were watching closely almost one full year ago as the United States Supreme Court prepared its significant decision in the case Rapanos v. United States, 126 S.Ct. 2208, 62 ERC 1481 (2006) (Rapanos). Representing a culmination of twenty years of regulatory disputes, the case held the promise of resolving substantial differences of opinion across the country regarding the reach of federal jurisdiction over certain "isolated wetlands."
On one side, property owners and developers blamed the federal government and the United States Army Corps of Engineers (Corps) for interfering with private property rights by claiming jurisdiction over every puddle on every property. From the opposite perspective, the Corps asserted that its exercise of regulatory discretion complied with its legislative directive to protect "waters of the United States."
Much to nearly everyone's surprise, the Supreme Court effectively entered a "no decision" in the Rapanos case and in its companion case, Carabell v. United States Army Corps of Engineers. The Court split 4-1-4, with Justices Scalia, Thomas, Alito and Chief Justice Roberts writing the Court's plurality (lead) opinion, Justice Kennedy writing the concurring opinion (by which the decision will largely be remembered) and Justices Breyer, Souter, Ginsburg and Stevens penning the dissenting opinion.
Rapanos did not resolve the jurisdictional dispute - instead, it confirmed the vitality of the dispute, to be litigated case-by-case, for years to come. As discussed in greater detail herein, the Supreme Court, through Justice Kennedy's opinion, manufactured a technical, scientific standard for when an isolated wetland is sufficiently connected to other regulated surface water to justify federal jurisdiction. Environmental lawyers and consulting wetland scientists can celebrate this outcome, but landowners and government regulators had hoped for more.
Background on Rapanos and the Federal Wetlands Program
At issue in Rapanos was the extent to which the federal government, acting through the Corps, could regulate wetlands with limited hydrologic connection to other, more traditional waters of the United States, under the Clean Water Act's (CWA) §404 permitting program.
Rapanos owned a 175 acre parcel near Traverse City, Michigan, which he planned to prepare and sell for development. Rapanos learned that certain parts of his property were wetlands, because of the presence of water near the ground surface, soil type and vegetation. Furthermore, because it was determined that his wetlands were "connected" to a navigable water, through a man-made drain and up to 20 miles of non-navigable ditches, the United States asserted jurisdiction over the wetlands as well as Rapanos' plan to clear and fill the wetlands.
Under §404 of the CWA, with limited exceptions, it is unlawful "to discharge dredged or fill materials" into "navigable waters" without a permit. For the purposes of the wetlands program, "Waters of the United States" includes "(2) all interstate waters including interstate wetlands; (3) all other waters such as intrastate . . . wetlands . . . the use, degradation or destruction of which could affect interstate or foreign commerce . . . ; (5) tributaries of waters identified in . . . this section . . . ; (and) (7) wetlands adjacent to waters (other than waters that are themselves wetlands) identified in . . . this section." 33 CFR §328.3(a) (the 1977 Corps Definition).
The Migratory Bird Rule
In 1985, the Supreme Court concluded, in the case United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), that federal wetlands jurisdiction expanded the Corps' control into "wetlands adjacent to waters." The Court concluded that a wetland does not need to be "navigable in fact" to be regulated by §404. As long as the wetland "abuts" the navigable water, it is within the scope of the 1977 Corps Definition.
The next year, the Corps stated in a preamble to certain wetlands regulations that the term "Waters of the United States" also included wetlands "which are or could be used as habitat by birds protected by Migratory Bird Treaties or . . . as habitat by other birds which would cross state lines." 51 Fed. Reg. 41206, 41217 (1986). This standard, which came to be known as the "Migratory Bird Rule," empowered the Corps to assert jurisdiction over isolated wetlands with no apparent hydrologic connection to other navigable waters. Because the language of the Migratory Bird Rule referred to isolated waters that "could be" used by migratory birds, nearly any wetland qualified for federal jurisdiction.
SWANCC
In 2001, the Supreme Court reviewed the case Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001). The SWANCC property was a 500 acre former sand and gravel strip mine in northern Illinois, filled with multiple trenches, pits and depressions. Over time, these depressions had filled with water and water-loving plants. In other words, the landscape was dotted with isolated pockets of wetlands. The Corps asserted jurisdiction over the property, based upon the presence of isolated wetlands that were or would be used by migratory birds.
The owners of the SWANCC property challenged the constitutionality of the Migratory Bird Rule as a basis for federal jurisdiction. The Supreme Court concluded that the Corps did not have the power to deny a permit for activities in isolated wetland such as the SWANCC site. The Supreme Court rejected the Corps' argument that Congress had implicitly blessed the Migratory Bird Rule during an earlier consideration of amendments to the CWA. The Court also concluded that the Corps' broad interpretation of its jurisdiction under the CWA was not a reasonable act by the agency.
In spite of the reach of the SWANCC decision, the Court left intact the Corps' jurisdiction to wetlands that were otherwise isolated and non-navigable, but which could be considered "adjacent to, or tributaries and impoundments of, other waters." As the SWANCC Court stated, referring to Riverside Bayview Homes, "some waters that would not be deemed 'navigable' under the classical understanding of that term" remained within the regulatory scope of the Corps' wetlands program - "it was the significant nexus between the wetlands and 'navigable waters'" that allowed §404 jurisdiction to reach such isolated wetlands.
Rapanos
When Rapanos cleared and filled his wetlands, the federal and state government initiated enforcement proceedings against him for filling wetlands subject to the migratory bird rule and also subject to the adjacent wetlands standard. After SWANCC eliminated the Migratory Bird Rule, Rapanos appealed his case to the Sixth Circuit Court of Appeals, which ruled in favor of the government.
The Supreme Court formally vacated the Court of Appeals decision, with a plurality opinion that was rickety in its composition but laced with acerbic language. Writing for the plurality of conservative justices, Justice Scalia argued that he would reverse the Court of Appeals decision, because Congress had intended that the scope of federal authority over wetlands be limited to "relatively permanent bodies of water . . . connected to traditional interstate navigable waters." He added that there must be a continuous surface connection between the wetland and the navigable water, making it difficult to determine where the water ends and the wetland begins.
Justice Kennedy wrote an opinion concurring with the four justice plurality to remand the case, but articulating a new standard for wetlands jurisdiction, thereby effectuating the voice of the Supreme Court for the Rapanos case. Kennedy looked back to Riverside Bayview and the conclusion that a wetland does not have to be wet, or immediately abutting a navigable water, to enable federal jurisdiction. In the statement by which Rapanos will be remembered, Kennedy concluded that a sufficient connection, or a "nexus," exists "if the wetlands . . . significantly affect the chemical, physical and biological integrity of the other covered waters more traditionally understood as navigable." Ironically, although both the majority and minority disagreed with the somewhat artificially manufactured "nexus test" of Justice Kennedy's concurring opinion, his threshold test is likely to be the lasting force in the post-Rapanos world of wetlands regulation.
Analysis
In the months that have followed, the Rapanos decision has generally been recognized to mean that federal jurisdiction exists if either the Scalia/plurality standard or if the Kennedy/nexus standard is met. However, in either case, but especially for the Kennedy standard, which seems to be more frequently cited, the Rapanos decision leaves regulated property owners and developers, as well as the regulators, in need of enhanced technical and legal justification for jurisdiction, or the lack of jurisdiction, over isolated wetlands.
In some circumstances, as it pertains to Kennedy's nexus test, the connection or nexus will be obvious - several courts have already applied or received petitions for rehearing citing Kennedy's test from Rapanos to determine if a significant nexus, and federal jurisdiction, is present (Gerke Excavating, Inc. v. United States, U.S., No. 05-623 (2006); 123 DEN A-1, 6/27/06); (US v. Chevron Pipeline Co. (No. 5:05-CV-293) (N.D. Tex 6/28/06)); (US v. Evans (3:05-cr-00159-TJC-MMH (M.D.Fla.))); (Northern California River Watch v. Healdsburg, 9th Cir, No. 04-15442 (8/10/06)). In one case in Massachusetts, the First Circuit Court of Appeals even directed a lower court to consult the dissenting opinion of Justice Stevens from Rapanos in determining whether federal jurisdiction is present (United States v. Johnson, 1st Cir., No. 05-1444, 10/31/06). The lesson from this line of post-Rapanos activity is that for cases with fact specific circumstances on properties like Rapanos', a costly battle of the experts will ensue -- when the project proponent or the government isn't happy with the outcome, the lawyers, consultants and government regulators will finish the fights.
In two other circumstances, however, the Supreme Court sent staggeringly conflicting messages in light of the earlier Rapanos nexus test. In declining review of Baccarat Fremont Developers LLC v. U.S. Army Corps of Engineers, U.S., No. 06-619, certiorari denied, 2/20/07, the Supreme Court let stand a decision by the U.S. Court of Appeals for the Ninth Circuit that held that the Corps does not need to show a "significant hydrological and ecological connection" between the wetlands and the adjoining streams before it can exert authority over the wetlands. And, on March 5, 2007, the Supreme Court declined review of Morrison v. United States, U.S., No. 06-749, where the Sixth Circuit (from whence Rapanos and Carabell originated) had rejected a motion for rehearing that would have critically evaluated the presence of a "significant nexus" in light of Rapanos. This recent activity that effectively denies Rapanos' impact on the wetlands regulatory landscape is perhaps even more troubling than the technical battle that would otherwise ensue when searching for nexuses.
One possible resolution of the Rapanos deadlock could occur if the Corps accepted the stern admonition of Chief Justice Roberts in his own concurring opinion in Rapanos, when he reprimanded the Corps for effectively creating the confusion that precipitated the Supreme Court's involvement when the agency failed to adopt guidance on isolated wetlands. The Corps told a Senate subcommittee on August 1, 2006 that it has no schedule for issuing such regulations, but expects to undertake the effort as soon as possible. Earlier this year, the Corps and the U.S.EPA suggested that clarifying guidance could be forthcoming in 2007, but no such guidance had been issued as of early April. Until the time that the agencies do clarify the rules by way of guidance, however, the costly and time consuming dispute over the reach of federal wetlands jurisdiction will likely continue.
Rapanos & Carabell: Do These Decisions Impact the State of Wisconsin's Wetland Regulatory Program?
By Michael J. Cain, Wisconsin Department of Natural Resources, February 2007
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Michael J. Cain
Mendota smallmouth was caught and released! |
This memorandum is to provide information relating to the decisions of the US Supreme Court in the Rapanos and Carabell cases, which were issued jointly on June 19, 2006 (126 S, Ct. 2208, 36 ELR 20116(2006). The cases have been remanded and will be reviewed further by the lower courts.
As discussed below, this decision will not have any immediate impact on wetland jurisdiction or regulation in WI. If the US Army Corps of Engineers (COE) modifies any future jurisdictional determinations in WI based on language in this decision, those wetlands will be treated as "nonfederal wetlands" under Section 281.36, Stats., and we will review the projects under State water quality certification processes.
Summary of Decisions and Impacts
1. The Supreme Court decisions resulted in a majority of Justices, 5-4, agreeing to remand the cases to the lower courts to further review the jurisdiction over these four wetlands, which are located adjacent to tributary streams headwaters areas (Rapanos) or separated from a tributary stream by a berm (Carabell).
In the Rapanos case, there were three tracts of wetlands impacted (28 acres, 64 acres and 49 acres). The wetlands are adjacent to waterways that flow into Lake Huron, and the evidence showed that there were surface water connections linking these wetlands to navigable waterways. Mr. Rapanos, who wanted to build a shopping center, was advised that he needed approvals for the work in the wetlands. He started the work without approvals and was charged criminally and civilly for the violations.
In the Carabell case, the parcel involved was a 19.6 acre site of which 15.9 acres was forested wetland. The property abuts a drainage ditch which flows into a stream and Lake Huron (about 1 mile away). The wetland is separated from the ditch by a berm, which provides flood storage. The berm is overtopped during the ten year flood event.
Four Justices (Scalia, Roberts, Thomas and Alito, the Plurality opinion) concluded that the Corps of Engineers' misinterpreted the breadth of jurisdiction under the Clean Water Act (CWA) by taking jurisdiction over these wetlands, and included waters not intended by Congress.
Four Justices (Stevens, Souter, Breyer and Ginsberg, the Dissenting opinion) concluded that the broad interpretation adopted by the Corps and EPA was appropriate, reflected three decades of practice under the CWA, and that to reject it would threaten the environment.
In the middle, and casting the fifth vote for remand, was Justice Kennedy (the Concurring opinion), who expressly disagreed with the interpretation suggested by the Plurality opinion, but opined that the cases must be remanded for further inquiry by the lower courts into whether the waters in question " possess a 'significant nexus" to waters that are or were "navigable in fact." He voted to vacate the lower court decisions here because they " did not consider all the factors necessary" to make that determination. The lower courts will have to review the cases further to determine if, factually, there is a 'significant nexus" between these wetlands and the federal navigable waters. He noted, in his decision for remand:
In both the consolidated cases before the Court, the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above. Thus the end result in these cases and many others to be considered by the Corps may be the same as that suggested by the dissent, namely, that the Corps' assertion of jurisdiction is valid. Given, however, that neither the agency nor the reviewing court properly considered the issue, a remand is appropriate…. (Kennedy opinion at p. 26)
2. There is not a decision, by a majority of Justices, that specifically defines how the jurisdiction of wetlands protection under the CWA should be determined in these cases. Chief Justice Roberts stated that: "It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis."
3. This decision will not change jurisdiction over wetlands in WI. When WI Act 6 (Section 281.36, Stats.) was adopted unanimously in both houses of the WI legislature in 2001, after the US Supreme Court decision in Solid Waste Agency of Northern Cook County , 531 US 159(2001) (known as SWANCC), it was determined that the State of WI would maintain the 'status quo' and would assure protection of WI wetlands by exerting state jurisdiction (State Water Quality Certification) over any wetlands which were determined non-jurisdictional by the federal agencies. In Section 281.36(1m), it is provided that " determination of nonfederal wetlands" includes those wetlands determined to be nonfederal under the SWANCC decision or any subsequent interpretations of that decision " by a federal agency or a federal district or federal appellate court that applies to wetlands located in this state."
In the decisions discussed herein, since there is not a majority of the US Supreme Court that redefines the federal jurisdiction, it is doubtful there will be a change in federal jurisdictional calls until these issues are sorted out after remand to the lower courts. If there are changes in what the federal agencies call jurisdictional, those wetlands will then become state jurisdictional wetlands under Section 281.36, Stats., and the State of WI will regulate discharges through state water quality certification regulations.
Discussion in the Supreme Court decision of Underpinnings of the Clean Water Act
The opinions are lengthy, covering 104 pages of text. The Plurality makes sweeping arguments outlining why, in their view, the CWA was misinterpreted and why the COE and EPA have expanded the scope of "waters of the US" far too broadly. On the other end of the spectrum, the Dissenting opinion provides sweeping arguments regarding why the interpretations of the CWA, which have evolved through litigation and administration of the program over 30 years, are necessary and legally appropriate.
Kennedy disagreed with elements of both of the other opinions. Citing past opinions of the US Supreme Court, he noted that they upheld the inclusion of adjacent wetlands in the Riverside Bayview case (474 US 121, 16 ELR 20086 (1985)), stating:
wetlands adjacent to lakes, rivers, streams and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water….The implication, of course, was that wetlands' status as "integral parts of the aquatic environment"-- that is, their significant nexus with navigable waters-- was what established the Corps jurisdiction over them as waters of the United States. (Kennedy opinion at p. 22)
Justice Kennedy went on to note that:
With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters-- functions such as pollutant trapping, flood control and runoff storage…Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase "navigable waters", if the wetlands either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other waters more readily understood as "navigable." When, in contrast, wetlands effect on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term "navigable waters."(Kennedy opinion at p. 23)
Justice Kennedy summarized the evidence in Rapanos and Carabell and suggested that the facts in those cases would appear to support the "significant nexus" test that he articulated.
In the Plurality opinion, four of the Justices stated that it was clear that the Corps of Engineers has jurisdiction over all "relatively permanent, standing or continuously flowing bodies of water" (at p. 20). Thus, they held that there is no ambiguity as it relates to relatively permanent streams or surface water bodies and those wetlands that are connected to them.
It is important to note, in looking at the decisions in total, there were 5 Justices who recognized and strongly supported the underlying purposes of the Clean Water Act. Justice Kennedy noted, at page 20 of his opinion:
Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular. To give just one example, amici here have noted that nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen depleted, "dead zone" in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey.
Harbingers of Change or Call for Clarification
of Clean Water Acts Intentions?
Federal Responses- Judicial, Congressional and Administrative
The two cases discussed here have been remanded for further review. Discussions with attorneys from the Corps of Engineers indicate that they are quite optimistic that jurisdiction will be upheld under the Scalia and Kennedy tests.
There are numerous other cases pending around the country on these issues, including cases in WI. Again, Federal attorneys at the Corps, EPA, USDOJ and the US Attorney's offices are optimistic that jurisdiction will be upheld in these cases in WI under the plurality ("relatively permanent" connection) or concurring ("significant nexus") tests articulated by the Supreme Court.
The Corps and EPA have advised their field staff that they will be issuing guidance interpreting these decisions which will be used to administer the program. As of this writing (February, 2007), the guidance has not been issued. Recent contacts with the Federal agencies indicate that it is not likely such guidance will be issued in the near future.
Nationally, there will continue to be heated debates and litigation over the breadth of the Federal jurisdiction over wetlands under the Clean Water Act. It is likely that there will be federal legislation proposed to address and clarify these issues.
Senator Feingold submitted a bill, with 17 co-sponsors, including Sen. Kohl, to amend the Clean Water Act to replace the term "navigable waters" with the term "waters of the United States," which would clarify the jurisdictional issues addressed in SWANCC. The bill, S. 473, (the Clean Water Authorization Restoration Act) was originally introduced in February, 2003, and had not moved forward. It was reintroduced in 2005 as S. 912, with a companion House bill (H.R. 1356). In view of the recent changes in Congress, we have been advised that this bill will be reintroduced this session.
Summary
This debate will continue for the foreseeable future. Even though we have the ability to regulate activities in Wisconsin wetlands due to WI Act 6, the potential impacts of federal decisions which limit wetland protection in other states are significant for WI, since waterfowl hunting and outdoor recreation are a significant part of our State's economy. The loss of habitat in the Mississippi flyway and the prairie pothole region of the US will have negative long term impacts on these facets of our economy.
Because of the importance of Wisconsin's waters, the State of Wisconsin has long been active in, and recognized as a leader in, the area of wetland regulations. In one of the leadings cases dealing with wetland issues, Just v. Marinette, 56 Wis. 2d 7 (1972), the WI Supreme Court noted:
a. " We start with the premise that lakes and rivers in their natural state are unpolluted and the pollution which now exists is man-made."
b. " Swamps and wetlands were once considered wasteland, undesirable, and not picturesque. But as the people became more sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of the water in our lakes and streams."
c. In upholding the statutes that establish the zoning program, the Court stated: " The active public trust duty of the State of Wisconsin in respect to navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation, and scenic beauty."
Due to our underlying state statutes and common law, the Rapanos and Carabell decisions have not limited the regulatory jurisdiction over wetlands in Wisconsin. For practitioners in Wisconsin, it is prudent to assume that approvals will be required for discharges into all areas that are identified as wetlands, whether they are "federal" or "non-federal" wetlands.
U.S. EPA and the Army Corps of Engineers Issue Joint Guidance on Wetlands Jurisdiction
By Tanya C. O'Neill, Foley & Lardner LLP
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Tanya C. O'Neill
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In June 2006, the Supreme Court issued its much anticipated decision in Rapanos v. United States, 126 S. Ct. 2208 (2006) (and its companion case Carabell v. United States Army Corps of Engineers). Both cases involved challenges to the U.S. Army Corps of Engineers' assertion of jurisdiction over wetlands that were adjacent to non-navigable tributaries of traditional navigable waters. Unfortunately, the Court's decision did not clear the muddy waters of wetland jurisdiction.[1] The Court was split 4-1-4 and the Justices issued five separate opinions (with no one opinion representing a majority) leading to more uncertainty among the agencies and the public over the scope of the Clean Water Act's wetland jurisdiction.
On June 5, 2007, the U.S. Environmental Protection Agency and the Army Corps of Engineers issued the Clean Water Act Jurisdiction Guidance (Guidance) (PDF, 148 KB) in an attempt to promote consistent jurisdictional determinations and permitting actions based upon application of the Rapanos opinion.[2] The Guidance seeks to articulate those waters that the agency will categorically assert jurisdiction over and those that will be assessed on a case-by-case basis. While the Guidance is effective immediately, the agencies are inviting public comments until December 5, 2007.
Based upon the Guidance, the agencies will assert jurisdiction over the following waters without making a "significant nexus" determination:
1. Traditional navigable waters, used in interstate commerce or subject to the ebb and flow of the tide, as defined in 33 C.F.R. §328.3(a)(1) and 40 C.F.R. §230.3(s)(1);
2. Wetlands adjacent to traditional navigable waters. Adjacent means "bordering, contiguous or neighboring." Guidance at 5. A determination of an adjacent wetland does not require a continuous surface connection to a traditional navigable water;
3. Relatively permanent non-navigable tributaries of traditional navigable waters. Relatively permanent means "waters that typically (e.g., except due to drought) flow year-round or waters that have a continuous flow at least seasonally (e.g., typically three months)." Id. at 5-6; and
4. Wetlands that have a continuous surface connection with such relatively permanent non-navigable tributaries. A continuous surface connection exists when the wetland directly abuts the tributary and is not separated by uplands, berms, or dikes. Id. at 4-6.
The agencies will assert jurisdiction over the following waters after making a jurisdictional determination on a case-by-case analysis of whether there is a "significant nexus" between the water and a traditional navigable water:
1. Non-navigable tributaries that are not relatively permanent;
2. Wetlands adjacent to such non-navigable tributaries that are not relatively permanent; and
3. Wetlands adjacent to but not directly abutting a relatively permanent non-navigable tributary due to a break in the continuous surface connection. Id. at 7-10.
The agencies' significant nexus analysis will follow Justice Kennedy's significant nexus standard articulated in his concurring opinion in Rapanos. "Wetlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'" Rapanos, 126 S. Ct. at 2248.
The agencies generally will not assert jurisdiction over the following waters previously considered to be wetlands:
1. Swales, gullies, or erosional features that have low volume with infrequent or short duration flow; and
2. Ditches, including roadside ditches, that do not have a relatively permanent flow of water and were "excavated wholly in and draining only uplands." Id. at 11.
Although the Guidance will serve as an aid in applying the Rapanos decision, significant debate and litigation will likely continue over the interpretation of a "significant nexus" and its application to each particular situation.
[1] Section 404 of the Clean Water Act prohibits the discharge of pollutants or fill materials into navigable waters, defined as "waters of the United States." See 33 U.S.C. 1311-1344. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), the Supreme Court concluded that federal jurisdiction extends to waters and wetlands "adjacent to" navigable waters. Following Bayview, the U.S. Army Corps of Engineers (Corp) promulgated wetlands regulations and included within the definition of "waters of the United States" isolated wetlands that could be visited by migratory birds. 51 Fed. Reg. 41206, 41217 (1986). In 2001, after the migratory bird rule was upheld by several courts, the Supreme Court held that the Corps had exceeded its authority in asserting Clean Water Act jurisdiction over isolated, intrastate, non-navigable waters based upon the migratory bird rule. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001).
[2] The Guidance can be found at www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf (PDF, 148 KB)
